Brantley v. Dunstan

193 S.E.2d 423 (1972) 17 N.C. App. 19

Norman Earl BRANTLEY
v.
Forrest V. DUNSTAN and Wallace R. Gray.

No. 721SC658.

Court of Appeals of North Carolina.

December 20, 1972.

Winston, Coleman & Bernholz, by Barry T. Winston, Chapel Hill, for plaintiff appellant.

Smith, Anderson, Blount & Mitchell, by John L. Jernigan, Raleigh, for defendant appellee Forrest V. Dunstan.

Maupin, Taylor & Ellis, by Thomas F. Ellis, Raleigh, for defendant appellee Wallace R. Gray.

GRAHAM, Judge.

The only question presented is whether the complaint is sufficient to withstand defendants' motions to dismiss, made pursuant to G.S. § 1A-1, Rule 12(b)(6). We hold that it is and reverse the judgment dismissing the action.

Allegations in the complaint, when construed liberally, are sufficient to show the following: Defendants, practicing attorneys, were retained by plaintiff to represent him in connection with a claim for personal injuries and property damage arising from an automobile accident with Lester Sawyer on 26 November 1962. Defendants falsely represented to plaintiff on various occasions prior to 26 November 1965 that they were negotiating a settlement with Sawyer's insurance company. On 26 November 1965, defendants filed suit for plaintiff against Sawyer, and Sawyer responded with a motion to dismiss on the grounds that the court never acquired jurisdiction over his person in that he was summoned to appear in the wrong county. Defendants did not cause the motion to come on for hearing until the spring of 1967 and at that time, the presiding judge refused to rule on the motion and forwarded it to the Grievance Committee of the North Carolina State Bar. Defendants continued to assure plaintiff that negotiations were taking place with Sawyer's insurance carrier; that a settlement was in the offing, and that if the settlement was not sufficient, the case would come on for trial. These representations were false, and were known by defendants to be false at the time they were made. Further the false representations were made by defendants for the purpose of deceiving plaintiff and they did deceive plaintiff in that, relying upon the representations, plaintiff refrained from obtaining other counsel or otherwise protecting his interests, and that as a consequence of said reliance, plaintiff received no compensation for his injuries and incurred other damages. The complaint also alleges that plaintiff did not learn that the representations made by defendants were false until 20 January 1969.

The complaint is certainly no model. However, when construed liberally, we are of the opinion that it sufficiently meets the requirements of G.S. § 1A-1, Rule 8(a). See Roberts v. Memorial Park, 281 N.C. 48, 187 S.E.2d 721; Sutton v. Duke, 277 N.C. 94, 176 S.E.2d 161; Cassels v. Motor Co., 10 N.C.App. 51, 178 S.E.2d 12; Lewis v. Air Service, Inc., 16 N.C.App. 317, 192 S.E.2d 6.

Defendants' principal position is that the complaint does not contain any allegations of facts from which fraudulent intent on the part of defendants may be inferred. While circumstances constituting fraud must be alleged with particularity, intent or other condition of mind of a person may be averred generally. G.S. § 1A-1, Rule 9(b). The misrepresentations which defendants allegedly made to plaintiff are set forth in the complaint with particularity, as are the circumstances under which the misrepresentations were made. It is alleged that defendants made the representations knowing them to be false and for the purpose of deceiving plaintiff; also, that plaintiff was deceived to his detriment and suffered damages as a result.

Reversed.

HEDRICK and VAUGHN, JJ., concur.